Case No.: UNDT/GVA/2011/067 NITED NATIONS DISPUTE … · Page 1 of 23 Case No.: UNDT/GVA/2011/067 ... By letter of 1 December 2010, the Director of PFP informed the Applicant

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Case No.: UNDT/GVA/2011/067

Judgment No.: UNDT/2012/185

Date: 29 November 2012

UNITED NATIONS DISPUTE TRIBUNAL

Original: English

Before: Judge Thomas Laker

Registry: Geneva

Registrar: René M. Vargas M.

SAMUEL THAMBIAH, O.

v.

SECRETARY-GENERAL

OF THE UNITED NATIONS

JUDGMENT

Counsel for Applicant:

Michael Ford Shanahan

Counsel for Respondent:

Jorge Ballestero, UNICEF

Case No. UNDT/GVA/2011/067

Judgment No. UNDT/2012/185

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Introduction

1. The Applicant, a former staff member of the United Nations Children’s

Fund (“UNICEF”), contests the decision to separate her from service due to the

abolition of her post, the decision to separate her while she was on sick leave, and

the decisions not to select her for posts for which she had applied.

2. She asks the Tribunal to rescind the decision to separate her from service,

and to order that she be reinstated with retroactive effect. She also asks the

Tribunal to order the Respondent to grant her a permanent appointment.

Furthermore, she seeks compensation for the moral injury she suffered and

reimbursement of the legal fees she incurred.

Facts

3. The Applicant, a Sri Lankan national, joined UNICEF in May 2001 as a

Publicity and Promotion Officer in the Private Fundraising and Partnerships

Division (“PFP”), based in Geneva. Her initial fixed-term appointment was

regularly extended and her last extension was due to expire on 31 May 2012.

4. On 22 October 2010, the Director of PFP convened a meeting with staff

and announced the restructuring of the PFP Cards and Gifts Section which was to

be implemented by the end of April 2011.

5. By letter of 1 December 2010, the Director of PFP informed the Applicant

that, “due to the necessities of service” her post was slated for abolition with

effect on 31 May 2011. In line with the procedures applicable to staff on

abolished posts, she was invited to apply for available posts and advised that her

name would be included on lists of applicants and/or shortlists. In the event that

her applications were not successful, she would be separated from service “upon

expiration of an exceptional 6-month notice period” on 31 May 2011.

6. At the end of 2010 and in the first half of 2011, the Applicant applied

unsuccessfully for a number of posts within and outside PFP. Also during the first



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half of 2011, she enquired several times about the outcome of these selection

processes, highlighting her qualifications and experience.

7. On 8 April 2011, the Applicant received a letter of separation with effect

on 31 May 2011.

8. From 4 to 9 May 2011, the Applicant was placed on sick leave by her

treating physician. As per a medical certificate dated 4 May 2011, she was to

return to duty on 10 May and work on a half-time basis until 15 May 2011.

9. On 20 May 2011, she wrote to the Director of PFP complaining about her

not being considered for posts for which she had applied and asking that the

abolition of her post not be implemented on 31 May 2011.

10. The Director of PFP responded by email of 21 May 2011 explaining, inter

alia, that recommendations to fill posts within PFP were being sent to the

Division of Human Resources at the UNICEF headquarters in New York and that

the process and timeline for review of post recommendations was outside the

remit of PFP. She also identified specific steps which the Administration had

taken in order to support staff on abolished posts. However, she stated, in the

Applicant’s case the date when her post would be abolished could not be deferred.

11. On Friday, 27 May 2011, the Applicant transmitted to the Administration

a medical certificate dated 25 May 2011 from her treating physician, placing her

on sick leave for two weeks. Upon its receipt, the Administration transmitted it to

the Medical Services Section of the United Nations Office at Geneva (“UNOG”)

in order to determine, inter alia, whether or not her sick leave could be certified.

12. By email sent on Sunday, 29 May 2011, the Applicant requested

management evaluation of the “[d]ecision by [the] Director [of] PFP … on

21 May 2011 that Applicant should look outside UNICEF and thereby unilaterally

separating Applicant’s services on 31 May 2011”.



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13. On 30 May 2011, she filed with the Tribunal an application for suspension

of action which was rejected by Order No. 90 (GVA/2011) issued on 31 May

2011.

14. Meanwhile, by email of 30 May 2011, the Applicant was advised that the

UNOG Medical Services Section required her to undergo a medical examination

by an independent practitioner with a view to determining whether or not her sick

leave could be certified, and she was thus requested to promptly report to the

Section. By emails of 1 and 9 June 2011 respectively, the Administration

reiterated this request and, on 23 June 2011, the Applicant was reminded that the

certification process was still pending.

15. The Applicant eventually reported to the UNOG Medical Services Section

on 14 July 2011, following which an UN Medical Officer certified her sick leave

up until 31 May 2011.

16. By letter of 12 July 2011 sent by email, that the Applicant admits in her

application to have been “delivered” on 14 July 2011, she was informed, in

response to her request for management evaluation, that the UNICEF Deputy

Executive Director had decided to uphold the contested decision. The letter

referred to two annexes which were not attached to the email.

17. By email of 18 July 2011 referring to the UNICEF response to the

Applicant’s request for management evaluation, the Applicant was provided with

the two annexes mentioned in the letter of 12 July 2011.

18. Also on 18 July 2011, newly appointed Counsel for the Applicant

submitted another request for management evaluation of the decision to separate

her from service, explaining that this request “supplement[ed] and incorporate[d]

by reference [that] filed by the Applicant on 29 May 2011”.

19. By letter of 4 August 2011, the Chief of the Policy and Administrative

Law Section at UNICEF responded, explaining that the decision to separate the

Applicant from service had already been considered, and that a response to the

initial request for management evaluation had been issued to her on 12 July 2011



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and received by her on 14 July 2011. Accordingly, Counsel for the Applicant’s

request of 18 July 2011 was rejected.

20. In August 2011, the Applicant submitted a claim to the Advisory Board on

Compensation Claims in accordance with Appendix D to the Staff Rules and

Regulations, which provides for the payment of compensation in the event of

death, injury or illness attributable to the performance of official duties on behalf

of the United Nations. As at the date of the hearing of 26 November 2012 (see

paragraph 26 below), the Applicant had not received a decision on this claim.

21. On 17 October 2011, the Applicant filed with the Tribunal the application

which forms the subject of the present Judgment. The Respondent submitted his

reply on 18 November 2011 and, a few days later, he filed under seal several

documents relating to the selection processes to which the Applicant had taken

part.

22. By motion filed on 9 December 2011, the Applicant requested the

Tribunal to order that the case be transferred to the Nairobi Registry and that the

Respondent produce documentary evidence. He also sought leave to file a

rejoinder. After receiving the Respondent’s comments on the requested transfer,

the Tribunal rejected the motion for change of venue by Order No. 146

(GVA/2012) of 10 October 2012.

23. By Order No. 147 (GVA/2012) of 11 October 2012, the parties were

instructed to produce evidence confirming the date when the emailed letter of

12 July 2011 containing the response to the Applicant’s request for management

evaluation was received. The Respondent and the Applicant complied with this

instruction on 12 and 18 October 2012, respectively.

24. In Order No. 157 (GVA/2012) of 7 November 2012, the Tribunal stated

that it was of the view that disclosure of the documents requested in the motion of

9 December 2011 was not necessary at that stage.

25. By motion filed on 14 November 2012, the Applicant sought leave to call

four witnesses, namely her two treating physicians, a former UNICEF Human



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Resources Officer and a named individual. The motion was rejected by

Order No. 163 (GVA/2012) of 19 November 2012.

26. On 26 November 2012, the Tribunal held a hearing which Counsel for the

Applicant and the Applicant attended in person; Counsel for the Respondent

participated by telephone from New York.

Parties’ submissions

27. The Applicant’s principal contentions are:

Admissibility

a. The Applicant submitted her request for management evaluation on

29 May 2011 without being assisted by counsel. The Administration’s

“incomplete” response to her request was sent on 14 July 2011 without the

relevant annexes but she “cannot offer any affirmative evidence that she

did receive [this response] prior to 18 July 2011, as no such evidence

exists in her possession to show that she did not open/read it until on or

about 18 July”. The Respondent bears the burden of proving that she

received it on 14 July 2011. On 18 July 2011, her newly appointed

Counsel submitted a “supplemental” request setting out additional grounds

to challenge the contested decision and the final response to her

supplemental request was received on or about 4 August 2011. As the

Applicant filed her application with the Tribunal within 90 days of her

receipt of the Administration’s final response, her application is

receivable;

b. The decision to slate her post for abolition conveyed to her on

1 December 2011 is distinct from the decision to abolish her post;

c. Staff members were repeatedly assured that, in the event that

selection processes were not completed by the end of April 2011, the

abolition of their posts would be deferred and, at numerous staff

association meetings, the Organization made promises that contracts of



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those staff members who had not been reassigned would be extended.

Further, the abolition of the posts of two of the Applicant’s colleagues was

postponed until completion of the restructuring. Her separation from

service was therefore premature and unlawful;

Merits

d. The abolition of posts was not undertaken in a transparent and fair

manner. UNICEF did not make sufficient efforts to secure alternative

employment for the Applicant and failed to treat her with due care, though

she was entitled to the rights and benefits conferred to staff on abolished

posts under UNICEF administrative instruction CF/AI/2010-001

(Separation from service);

e. The selection processes to which the Applicant took part were not

conducted in a fair and transparent manner and they were tainted by

irregularities, discrimination and bias. She was not given due

consideration. She submitted more than 30 applications for posts in the

new PFP structure as well as in other units within UNICEF but was not

selected for any post, whereas colleagues from developed European

countries or members of the UNICEF Geneva Staff Association, who had

significantly less experience than her, were. It is difficult to believe that,

after 10 years of satisfactory service with UNICEF, she was unsuitable for

any position. This is illustrated by the fact that she was not shortlisted for

posts for which she was qualified and it is only after she complained about

the lack of fairness in the selection process that she was invited for

interviews and shortlisted for positions which were not fully within the

scope of her experience. In addition, while her application for a P-3 post of

Corporate Alliance Officer was unsuccessful, she was invited for an

interview in relation to the filling of a P-4 post of Corporate Alliance

Officer. Further, her requests for clarification on why she was not

shortlisted for several posts were bounced from Geneva to the UNICEF

headquarters in New York without anyone providing answers. Also, the

reason put forward not to invite her for an interview in relation to a post of



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Fundraising Specialist for which she clearly qualified is that the position

needed to be filled hastily and she was on holiday, then on sick leave.

Though the Administration repeatedly contacted her husband while she

was on sick leave, it did not contact her when the opportunity to interview

her for a job matching her competencies arose. Furthermore, in deciding

not to shortlist her for any Communication posts, the Administration failed

to properly assess her communication skills, and disregarded the fact that

she held two degrees in communication, and that communication was

mentioned in the job description for the post of Publicity and Promotion

Officer which she held since 2001. Lastly, the fact that the Administration

invited her to apply for posts and yet disregarded her applications violated

her right to be treated with dignity. The Respondent should be ordered to

disclose documents which are necessary to show that the non-selection

decisions were tainted by prejudice;

f. The Applicant was wrongfully separated from service while on

certified, service-incurred sick leave, whereas her medical condition was

corroborated by an email from the UN Medical Officer who had seen her

on 14 July 2011. Her separation while on sick leave contravened the case

law of both the Dispute Tribunal and the former UN Administrative

Tribunal, and it infringed section 3.9 of administrative instruction

ST/AI/2005/3 (Sick leave) which provides that, when a staff member on a

fixed-term appointment is incapacitated for service by reason of an illness

that continues beyond the date of expiration of the appointment, he or she

shall be granted an extension.

28. The Respondent’s principal contentions are:

Admissibility

a. The Applicant is time-barred from contesting the lawfulness of the

abolition of her post; she was notified on 1 December 2010 that her post

would be abolished as of 31 May 2011 and she failed to request



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management evaluation of this decision within 60 days, as required by

staff rule 11.2(c);

b. The letter of 1 December 2010 was a formal notice of termination,

as foreseen under sections 9.4 and 14 of UNICEF administrative

instruction CF/AI/2010-001. No further decision was made regarding this

matter. Therefore, the distinction drawn by the Applicant between the

decision to slate her post for abolition and the decision to abolish her post

is moot;

c. The way in which the Organization structures its operations,

including the abolition of posts, is not subject to appeal by the Applicant

as it does not affect her contractual rights;

d. In rejecting her application for suspension of action, the Tribunal

considered in Order No. 90 (GVA/2011) that the email of 21 May 2011

did not contain any challengeable administrative decision;

e. The Applicant did receive the response to her initial request for

management evaluation on 14 July 2011 and the 90-day time limit to file

her application thus started to run as from this date. The annexes sent on

18 July 2011 did not contain information in addition to the clarification

included in the letter of 12 July 2011;

Merits

f. According to section 8 of CF/AI/2010-001, a fixed-term

appointment may be terminated due to the abolition of posts. The

Applicant’s separation from service took place in the context of the

restructuring of PFP which required the abolition of 74 posts, including

hers, and the creation of 36 new positions. The Administration has fully

complied with its obligations under section 9 of CF/AI/2010-001 by

keeping the Applicant informed in a timely manner of the restructuring,

giving her six-month notice of termination, assisting her in identifying and

applying for available and potentially suitable posts, and giving her



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individual feedback on her interviews. There was no obligation for the

Respondent to find and place her on a suitable post without her undergoing

a selection process;

g. The Applicant was given full and fair consideration for the posts

for which she applied. Of the 20 positions within PFP for which she was

shortlisted, she withdrew her candidatures for four posts, she did not take

the written tests for two of them and she did not come for the interviews

for two other posts. Further, she was deemed not to meet the requirements

for two Communication posts as she fell short of the required experience.

Her candidature was thus considered for 10 PFP posts. She was

interviewed but found not suitable for seven posts, one post was

readvertised, one post had to be filled urgently and she was not invited for

an interview due to her unavailability at the time. As for the remaining

post, though she was invited for an interview, she did not reply to the

invitation. Of the eight posts outside PFP for which she applied, one

vacancy was cancelled, and she did not meet the requirements for the

seven other posts, including six Communication posts and one P-4

Corporate Alliance Specialist post. The Applicant’s reliance on the job

description for her post of Publicity and Promotion Officer is wrong; she

in fact quotes a portion of her personal history form. Additionally, when

she protested that she did meet the requirements for one of the

Communication posts, a Human Resources Officer offered to discuss the

matter with her but the Applicant never contacted her. Further, the

Applicant’s contentions regarding irregularities in the selection of other

staff members are unsubstantiated and immaterial to her case. Likewise,

her allegations of discrimination and bias are unsupported by evidence and

defamatory. On the contrary, the fact that several selection processes were

delayed to accommodate the Applicant shows the Administration’s good

faith;

h. In spite of the Administration’s requests made on 30 May, 1 and

9 June 2011, the Applicant did not report to the UNOG Medical Services



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Section in order for an independent specialist to review her medical

condition and determine whether or not her sick leave should be certified.

Her absence from 27 to 31 May 2011 had thus to be treated as uncertified

sick leave. It was not until 14 July 2011 that she reported to the Section;

her sick leave was then retroactively certified from 27 to 31 May 2011 and

her separation payment adjusted accordingly. As per the applicable

provisions, the Applicant’s separation was due to the termination of her

appointment and not to the expiration of her appointment. Therefore,

section 7.1 of UNICEF administrative instruction CF/AI/2009-009 (Sick

leave)—which provides that, when a staff member on a fixed-term

appointment is incapacitated for service by reasons of an illness that

continues beyond the date of expiration of the appointment, he or she shall

be granted an extension of the appointment after consultation with the

Organization’s medical doctor—is not applicable;

i. It has not yet been established whether or not the illness suffered

by the Applicant is service-incurred. Once the Advisory Board on

Compensation Claims issues its findings, the Administration will take

action, as appropriate, to reconsider her case.

Consideration

Identification of the contested decisions

29. In her application, the Applicant identified the contested decision(s) as

follows:

Wrongful separation from service after irregular post abolition, and

failure to assign Applicant to another post, and illegal separation

while Applicant was on service-incurred sick leave, based on

illegal, irregular or discriminatory/prejudicial grounds.

30. The Tribunal notes at the outset that the Applicant’s written submissions fall

short of identifying comprehensibly the decision(s) she seeks to contest.



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31. In Massabni 2012-UNAT-238, the Appeals Tribunal held:

2. The duties of a Judge prior to taking a decision include the

adequate interpretation and comprehension of the applications

submitted by the parties, whatever their names, words, structure or

content they assign to them, as the judgment must necessarily refer

to the scope of the parties’ contentions. Otherwise, the

decision-maker would not be able to follow the correct process to

accomplish his or her task, making up his or her mind and

elaborating on a judgment motivated in reasons of fact and law

related to the parties’ submissions.

3. Thus, the authority to render a judgment gives the Judge an

inherent power to individualize and define the administrative

decision impugned by a party and identify what is in fact being

contested and so, subject to judicial review which could lead to

grant or not to grant the requested judgment.

32. Likewise, the Dispute Tribunal has on many occasions stressed that an

application must properly single out each and every administrative decision that

an applicant wishes to contest in a clear and concise manner (see, inter alia,

O’Neill UNDT/2010/203, Simmons UNDT/2011/085, Ibrahim UNDT/2011/115,

Lex UNDT/2011/177), failing which the application could be deemed irreceivable

(Siaw UNDT/2012/149).

33. In view of the above, and despite the lack of a clear and precise

identification of the contested decision(s), the Tribunal considers, to do justice to

the Applicant, that it has before it the following administrative decisions: the

decision to separate her as a result of the abolition of her post, the decisions not to

select her for posts for which she had applied, and the decision to separate her

while she was on sick leave. These decisions will be examined in turn.

Decision to separate the Applicant from service as a result of the abolition of her

post

34. It is not disputed that the Applicant was notified that her post was slated

for abolition by letter of 1 December 2010 from the Director of PFP. In her

application and at the hearing of 26 November 2012, the Applicant emphasized

that she does not take issue with the 1 December 2010 decision to abolish her

post. Rather, she challenges the decision conveyed on 21 May 2011 which



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“uph[e]ld and carr[ied] through the abolition of her post on the initially suggested

date”.

35. To consider this claim, it is worth recalling the relevant legal provisions.

Staff regulation 9.3(c) states:

If the Secretary-General terminates an appointment, the staff

member shall be given such notice … as may be applicable under

the Staff Regulations and Staff Rules.

36. Further, staff rule 9.7(b) provides:

A staff member whose fixed-term appointment is to be terminated

shall be given not less than thirty calendar days’ written notice of

such termination or such written notice as may otherwise be

stipulated in his or her letter of appointment.

37. Lastly, paragraphs 9.4, 9.11 and 14.2 of UNICEF administrative

instruction CF/AI/2010-001 of 10 March 2010 respectively provide:

9.4 Notice of termination periods … will be served in writing

to staff occupying posts identified for abolition.

…

9.11 If the staff member has not been selected for a post, the

effective date of separation is as follows:

…

(c) in the case of a staff member holding a fixed[-]term

appointment which expires after the end of the notice period, the

separation date is the date of expiration of the notice period.

…

14.2 The following notice periods apply:

…

(b) fixed-term appointment: no less than 30 days written notice

(or any other notice period stipulated in the letter of appointment)

…



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38. The letter of 1 December 2010 stated:

I regret to inform you that due to necessities of service the post you

currently encumber is among the posts slated for abolition with

effect on 31 May 2011.

…

In accordance with [CF/AI/2010-001], during the period of notice

served to you by this letter, you are expected to apply for all

available posts for which you believe you have the required

competencies.

…

Should you not be selected for a post, I regret to have to inform

you that you will be separated from service, upon expiration of an

exceptional 6 month[-]notice period, on 31 May 2011.

39. The language of the letter of 1 December 2010 is unambiguous. Contrary

to the Applicant’s claims, this letter did not express a mere “intention” to abolish

her post and separate her from service with effect from 31 May 2011; it contained

the notice of termination of her appointment, as foreseen by the above quoted

provisions.

40. The Applicant’s claim is premised on an untenable distinction between the

decision “to slate her post for abolition” contained in the letter of 1 December

2010 and what she alleges to be a decision “to carry through the abolition”

conveyed to her in the email of 21 May 2011. There is no basis for such

distinction. On the contrary, paragraph 9.4 of CF/AI/2010-010 specifies that the

notice of termination is served on incumbents of posts identified for abolition, as

was done in the instant case by the letter of 1 December 2010. Neither the letter of

separation of 8 April 2011—which explicitly referred to the letter of 1 December

2010 “informing [the Applicant] of the abolition of [her] post and providing [her]

with a six-month notice period”—nor the email of 21 May 2011 contained a

distinct administrative decision in this respect.

41. The Tribunal notes in passing that in a “Briefing Note” dated 18 March

2011 and addressed to the Director of PFP, the Applicant explicitly referred in the



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title to the fact that her post would be abolished with effect from 31 May 2011

(see annex 13 to the application).

42. It follows from the above that the decision to abolish the Applicant’s post

and consequently to separate her from service was conveyed to her on

1 December 2010. It is undisputed that she failed to contest this decision within

the 90-day time limit established by the Statute of the Tribunal (see paragraph

46 below) and she may not, therefore, challenge it before the Tribunal.

43. Regarding the Applicant’s allegations that promises were made that the

abolition of the concerned posts would be postponed, the Tribunal recalls, as it

ruled in Order No. 163 (GVA/2012), that where a staff member claims that he or

she had a legitimate expectation arising from a promise made by the

Administration, such expectation “must not be based on mere verbal assertions,

but on a firm commitment … revealed by the circumstances of the case” (Abdalla

2011-UNAT-138; see also Ahmed 2011-UNAT-153). In this respect, the Tribunal

has considered in Wilkinson UNDT/2009/089 that “opinions expressed by some

representatives of the Administration cannot be understood as express promises”.

44. Even assuming that the Organization assured staff that it “would defer the

abolition of posts” for those staff “whose posts were due to expire in May

2011”—as the Applicant argues in her application—or that it made promises at

“numerous staff association meetings to extend contracts several months in the

event employees had not been reassigned by given date”—as she alleges in her

motion of 14 November 2012—, she has not claimed that a promise was made to

her individually that the abolition of her post would be postponed in the event she

was not selected for another position by 31 May 2011. Further, she has not

adduced evidence showing that these assurances and promises were made by

competent authorities and that they reflected a firm and express commitment from

the Administration.



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Decisions not to select her for posts for which she had applied

45. In her application, the Applicant alleges that the Administration failed to

follow proper procedures and to make sufficient efforts to find her alternate

employment. In this respect, she submits that UNICEF failed in its duty of care.

The Tribunal notes that these claims are intrinsically linked to the selection

processes to which she unsuccessfully took part and, for this reason, it shall

consider them in reviewing the decisions not to select her for posts for which she

had applied.

46. Article 8.1(c) and (d) of the Tribunal’s Statute provides that an application

shall be receivable if the applicant has previously submitted the contested

administrative decision for management evaluation, and if the application is filed

within 90 calendar days of the applicant’s receipt of the response to his or her

request.

47. At the outset, the Tribunal recalls that the scope of an application is

defined by the request for management evaluation (see, in particular, Ibekwe

UNDT/2010/159 as affirmed in Ibekwe 2011-UNAT-179 as well as Neault

UNDT/2012/123).

48. It further recalls that, in Planas 2010-UNAT-049, the Appeals Tribunal

rejected the applicant’s general claim in relation to her non-selection. In so doing,

it considered:

20. [T]he claim that she was passed over and discriminated

against could only be made if the staff member, feeling that she

had suffered injury after she had submitted a specific candidacy

and after another person had been selected, had contested the

results of the selection process, that is, the specific appointment

made.

21. Therefore, the UNDT was correct in finding that, as Planas

did not contest in precise terms her non-selection for any post, she

did not identify any administrative decision in her application.

49. In this case, the Applicant referred, in her request for management

evaluation of 29 May 2011, to the decisions not to consider her for “two positions



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in the new structure” (see annex 32 to the application, p. 1), the decisions not to

shortlist her for “two Communications posts”, and the decision not to consider her

“for the many posts outside the new structure” (see annex 32 to the application,

p. 2). In identifying the remedies sought (see annex 32 to the application, p. 5), the

Applicant referred to three specific P-3 posts: Interactive Marketing Specialist,

Marketing Specialist and Customer Service Specialist.

50. In addition, in the document entitled “Description of the context of the

decision, relevant facts, documents and other information important in the context

of the request for evaluation” which she appended to her initial request for

management evaluation, the Applicant referred to the decision not to select her for

“two re-profiled positions in the new structure”. She also referred to the decision

not to shortlist her for two Communication posts.

51. As is clear from the wording of the letter of 12 July 2011 responding to the

Applicant’s 29 May 2011 request for management evaluation, the Administration

reviewed the selection processes in relation to all 30 posts for which she had

applied, both within and outside PFP.

52. In the motion filed in response to Order No. 147 (GVA/2012) and at the

hearing of 26 November 2012, the Applicant explained that she did not remember

when she had received the letter of 12 July 2011 and she argued that it was for the

Respondent to prove that she had indeed received it on 14 July 2011.

53. On the one hand, the Tribunal understands that, more than a year after the

events, the Applicant no longer remembers when she received the letter of

12 July 2011. On the other hand, the Tribunal has no doubt that the statement in

her application of 17 October 2011, made only a little over three months after the

receipt of the letter, accurately reflects the chronology of events. According to this

statement, the letter in question was delivered on 14 July 2011. This date matches

the dispatch date of the email to which the letter of 12 July 2011 was attached and

a copy of which was produced by the Respondent. No further evidence is needed.

54. The Applicant also submitted that 18 July 2011 was the “effective date of

receipt of the complete rejection” of her request for management evaluation and



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should therefore also be considered as the date from which the 90-day time limit

started to run. She stressed that, insofar as the Administration had not appended to

its email of 14 July 2011 all of the documents referenced in the letter of 12 July

2011, this communication did not constitute a complete response to her request.

55. However, the Tribunal considers that the Administration’s failure to

append the annexes to its email of 14 July 2011 did not have any impact on the

validity or completeness of the response to the Applicant’s initial request for

management evaluation, insofar as the latter concerned the decisions not to select

her for posts for which she had applied. The 7-page letter of 12 July 2011

addressed all of the issues pertaining to the Applicant’s non-selection in a clear

and conclusive way. In addition, it referred to the judicial remedies available to

her:

This constitutes the final decision, as prescribed by United Nations

Staff Rule 11.2(d). Should you wish to file an application against

this decision with the United Nations Dispute Tribunal, you can do

so within … 90 … days from the date of receipt of this letter.

56. The two annexes that were missing consisted of a document reflecting the

status of the Applicant’s candidatures as well as a copy of the recommendations

made by the selection panel concerning the Applicant’s candidature for two P-3

posts of Project Manager (Fundraising Services Unit) within PFP. The annexes

are purely illustrative and add no substantive information to the letter of

12 July 2011. Besides, the Tribunal notes that the Applicant neither requested

these documents after she received the letter of 12 July 2011 nor referred to them

at any later stage.

57. In sum, the transmittal on 18 July 2011 of the missing annexes did not

have any effect on the 90-day time limit specified in article 8.1(d) of the

Tribunal’s Statute, which limit started to run as from the receipt of the letter of

12 July 2011, that is 14 July 2011. It follows that the Applicant had until

12 October 2011, at the latest, to file her application challenging before the

Tribunal the decisions not to select her for posts for which she had applied. As the

application was filed only on 17 October 2011, it is time-barred and therefore

irreceivable.



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58. At this juncture, the Tribunal observes that the Applicant did not submit a

motion for extension of time to file her application. It recalls in this respect what

was held in Czaran UNDT/2012/133:

23. [T]he 90-day time limit for staff members to submit an

application after receiving a response to a request for a

management evaluation is sufficiently long to allow them to

address … any technical problems with transmission of the letter

[containing such response] and any difficulties that the staff

member encounters in taking note of the Administration’s

response. Furthermore, even if the Applicant absolutely required

90 days in order to submit his application to the Tribunal, he could

have applied for an extension of time, which he did not do.

59. Lastly, contrary to the Applicant’s claim, the second request for

management evaluation of 18 July 2011 did not affect the 90-day time limit either.

Indeed, with respect to her non-selection for posts for which she had applied, this

request did not identify novel administrative decisions but simply reiterated and

developed the claims raised in her 29 May 2011 request for management

evaluation that were dealt with in a conclusive way in the letter of 12 July 2011. It

was thus redundant in that respect and does not reset the clock.

60. In view of the above findings, it is unnecessary to order disclosure of the

documents relating to the selection processes to which the Applicant took part as

well as the documents filed by the Respondent under seal.

Decision to separate the Applicant from service while she was on sick leave

61. Among the relief claimed in her application, the Applicant seeks

“[r]eversal of the decision to separate [her] while on certified … medical leave”.

62. Although this claim was not part of the request for management evaluation

that the Applicant initially submitted on 29 May 2011, the letter of 12 July 2011

did address the issue. Yet, as was recalled earlier, the scope of an application is

defined by the request for management evaluation. As a result, the

Administration’s response concerning a decision which had not been contested by

the Applicant may not be taken into account for the purpose of calculating the

90-day time limit to file an application.



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63. The claim was however mentioned in the request for management

evaluation that the Applicant subsequently submitted on 18 July 2011. This

second request was sent within the 60-day time limit specified in staff rule 11.2(c)

and, consequently, the 90-day time limit to file her application started to run from

the date when the Applicant received the Administration’s response to this second

request, that is, 4 August 2011. Given that her application was filed on

17 October 2011, the Tribunal considers the claim in relation to the decision to

separate the Applicant from service while she was on “certified” sick leave to be

receivable ratione temporis.

64. In her motion for leave to call witnesses, the Applicant explained that her

two treating physicians would provide evidence on her medical condition at the

time of her separation. However, it is not disputed that, as from 25 May 2011, she

was placed on sick leave by her treating physicians. Nor is it disputed that her sick

leave was eventually certified only until 31 May 2011. What is at stake is whether

or not her sick leave should have been certified beyond that date. For this reason,

her motion for leave to call her treating physicians as witnesses had to be rejected.

65. Staff rule 6.2 relevantly provides:

Sick leave

(a) Staff members who are unable to perform their duties by

reason of illness or injury or whose attendance at work is prevented

by public health requirements will be granted sick leave. All sick

leave must be approved on behalf of, and under conditions

established by, the Secretary-General.

…

Obligations of staff members

…

(g) A staff member may be required at any time to submit a

medical report as to his or her condition or to undergo a medical

examination by the United Nations medical services or a medical

practitioner designated by the United Nations Medical Director.

When, in the opinion of the United Nations Medical Director, a

medical condition impairs a staff member’s ability to perform his

or her functions, the staff member may be directed not to attend the



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office and requested to seek treatment from a duly qualified

medical practitioner. The staff member shall comply promptly with

any direction or request under this rule.

…

Review of decisions relating to sick leave

(j) Where further sick leave is refused or the unused portion of

sick leave is withdrawn because the Secretary-General is satisfied

that the staff member is able to return to duty and the staff member

disputes the decision, the matter shall be referred, at the staff

member’s request, to an independent practitioner acceptable to

both the United Nations Medical Director and the staff member or

to a medical board.

66. Further, UNICEF administrative instruction CF/AI/2009-009 (Sick leave)

states:

3.2 Procedures for Certification of Sick Leave …

3.4 Staff stationed Outside New York. The Head of Office

has authority to certify sick leave up to a total of twenty working

days, cumulative or consecutive, within a 12-month period if

supported by medical statements.

3.5 All sick leave in excess of twenty working days within a

12-month period must be referred by the local human

resources/operations specialist to the United Nations Medical

Service for certification. For that purpose, the staff member shall

submit to the human resources/operations specialist, in a sealed

envelope, a detailed medical report from a licensed medical

practitioner. This medical report will be forwarded unopened to the

appropriate designated medical officer for certification, ensuring

that any confidential medical content is seen only by authorised

medical personnel.

…

3.7 [I]f the sick leave is not certified by the Medical Director or

designated officer, for administrative purposes, the absence shall

be treated as unauthorized absence …

3.8 A staff member on sick leave may be required, at any time,

to submit a medical certificate as to his/her condition or to undergo

examination by a medical practitioner designated by the United

Nations Medical Service. Further sick leave may be refused or the

unused portion withdrawn if it is determined by the United Nations

Medical Service that the staff member is able to return to work.



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The staff member is entitled to seek a review of the matter, in

which case it is referred to another medical practitioner or to a

medical board acceptable to both the United Nations Medical

Service and the staff member.

67. It results from the above provision, in particular paragraph 3.4 of

CF/AI/2009/009, that it is for the Administration to certify sick leaves. In so

doing, it may request the staff member to undergo an examination by a medical

practitioner.

68. It is clear from the documents on file that, though requested to undergo

such examination, the Applicant failed to comply promptly with the

Administration’s request of 30 May 2011, reiterated on 1 and 9 June 2011, and

that she only reported to the UNOG Medical Services Section on 14 July 2011,

that is, some 45 days after the request was first made.

69. In addition, the Tribunal notes that the Applicant failed to request review

of the decision relating to her sick leave as provided for in staff rule 6.2(j). Having

failed to follow the prescribed procedure, she may not now challenge before the

Tribunal the decision not to certify her sick leave beyond 31 May 2011.

70. In her application and subsequent pleadings, the Applicant also submitted

that she could not be lawfully separated from service while she was on

“service-incurred” sick leave and that the service-incurred nature of her illness

was corroborated by an UN Medical Officer. In her motion of 14 November 2012,

she added that her treating physicians would provide evidence on the “service

connected nature” of such condition.

71. It is common ground that, in August 2011, she submitted a claim to the

Advisory Board on Compensation Claims in accordance with Appendix D to the

Staff Rules and Regulations. At the hearing of 26 November 2012, the parties

confirmed that a decision had not yet been made on her Appendix D

compensation claim.

72. Consequently, even assuming that the Administration could not lawfully

separate her from service because her illness was attributable to the performance



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of official duties on behalf of the United Nations—which is doubtful—, such a

decision has not yet been taken by the competent body and the Applicant’s claim

in this respect is premature.

Conclusion

73. In view of the foregoing, the Tribunal DECIDES:

The application is rejected in its entirety.

(Signed)

Judge Thomas Laker

Dated this 29th day of November 2012

Entered in the Register on this 29th day of November 2012

(Signed)

René M. Vargas M., Registrar, Geneva

Documents

Case No.: UNDT/GVA/2011/067 NITED NATIONS DISPUTE … · Page 1 of 23 Case No.: UNDT/GVA/2011/067 ... By letter of 1 December 2010, the Director of PFP informed the Applicant